IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. 32-DB of 1999
Date of Decision: July 09, 2008
Smt. Om Pati ... Appellant
Versus
State of Haryana. .. Respondent
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL,
HON'BLE MR. JUSTICE S.D. ANAND.
Present : Mr. J.S. Bains, Advocate,
as Amicus Curiae,
for the appellant.
Mrs. Naveen Malik, Addl. Advocate General, Haryana,
for the respondent.
S.D. Anand, J.
The finding of indictment, recorded by the learned Trial
Judge, as against the appellant – Om Pati essentially stems from the
implicit reliance placed by the Court upon the dying declaration made
by the deceased lady. The dying declaration had been recorded by
PW5 – Sh. J.S. Dahiya, the then A.C.J.M., Rohtak, in the presence
of PW2 – Dr. Narinder Kaushik, Medical Officer, who testified at the
trial that the maker of dying declaration “remained fully conscious
during period same was recorded by Magistrate.”
Rajesh Kumari was wife of Rakesh, a son of appellant –
Om Pati (and Ram Saran – a non-appellant). Marriage between
Rajesh Kumari and Rakesh was solemnized on 16.05.1991. A male
child was born to her out of their union. However, appellant – Om
Crl. Appeal No.32-DB of 1999 2
Pati had been harassing Rajesh Kumari as the former was not
satisfied with the adequacy of the dowry brought by the latter. On
the fateful day, Rajesh Kumari had a tiff with the appellant while both
of them were in the kitchen. The appellant announced that Rajesh
Kumari should better die. Thereupon, Rajesh Kumari poured
kerosene oil and set herself ablaze. Even after she had lighted the
matchstick and was afire, the appellant also lighted a matchstick and
threw it upon her daughter-in-law. Her husband pleaded with her
thereafter that she ought to make a statement that she had been
engulfed in fire due to stove burst or gas leakage and she should not
accuse the appellant (mother of Rakesh Kumar) for the occurrence.
The learned Amicus Curiae, appearing on behalf of the
appellant, has a valid point that the appellant could not have been
convicted on a charge of murder because there was no evidence,
direct or otherwise, to prove that it was the appellant who poured
kerosene oil and initially set the deceased afire. That averment is
borne out even by the contents of the dying declaration, in the course
whereof Rajesh Kumari categorically indicated that she herself
poured kerosene oil upon her following a taunt by her mother-in-law
that she should better die. She proceeded to aver that it was she
who lighted the matchstick and set herself ablaze. In the light
thereof, we accept the advocated view that the conviction of the
appellant for offence under Section 302 of the Indian Penal Code is
inappropriate and cannot be upheld.
However, the appellant has nothing to celebrate because
she cannot get away from the charge of having abetted the
Crl. Appeal No.32-DB of 1999 3
commission of suicide by Rajesh Kumari – deceased. As apparent
from the statement of PW8 – Basheshar Dayal, father of Rajesh
Kumari, the appellant had been mal-treating the deceased on
account of the insufficiency of the dowry brought by the latter. We
find that the testimony of PW8 – Basheshar Dayal is, even otherwise,
credible. He did not hesitate to concede that the deceased and her
husband were separate in mess and residence from the appellant
because the appellant did not allow them to stay in her house.
However, he categorically added that the appellant had been visiting
the house occupied by the appellant and her husband. He also did
not conceal that as long as Rakesh Kumar was in job, he used to
keep Rajesh Kumari at his place of posting but he had to bring her
(Rajesh Kumari) back to the village after he had been removed from
service. The presentation made by PW8 – Basheshar Dayal in the
context of the above facts is natural and has no element of
untruthfulness.
As would be apparent from a perusal of the dying
declaration, Rajesh Kumari categorically averred that the appellant
had been harassing her. She was fair enough to aver that she set
herself afire but only after the appellant taunted her that she should
better die. Rajesh Kumari was equally categorical, in the course of
Ex.PQ (dying declaration), that she was the first to light the
matchstick and that it is only thereafter that the appellant lighted
another matchstick which she threw upon her. We find the contents
of the dying declaration to be truthful and reliable. As already
noticed, the dying declaration was recorded by PW5 – Sh. Jagbir
Crl. Appeal No.32-DB of 1999 4
Singh Dahiya, the then ACJM, Rohtak, only after PW2 – Dr. Narinder
Kaushik certified that she was fit to make a statement. Apart
therefrom, Dr. Narinder Kaushik (PW2) further testified at the trial
that “patient remained fully conscious during period same was
recorded by Magistrate.” There is not even an averment that Rajesh
Kumari had been tutored by anybody in the making of that statement
which (dying declaration) also has an element of truthfulness in the
context of the manner in which the impugned occurrence had taken
place.
We, accordingly, dismiss the appeal. However, the
conviction of the appellant under Section 302 of the Indian Penal
Code shall stand set aside. Instead thereof, the appellant is
convicted for an offence under Section 306 of the Indian Penal Code.
It is beyond the pale of controversy that she had already undergone
little more than four years of imprisonment before she was released
on bail under the orders of this Court. In the peculiar circumstances
of the cases, we deem it appropriate to order that the period
undergone by the appellant would serve the interest of justice and we
so order accordingly.
( S.D. Anand )
Judge
July 09, 2008 ( Adarsh Kumar Goel )
vkd Judge
Note: Whether to be referred to reporter : Yes/No